Marking influencer advertising: press trip instead of honorarium – nevertheless advertising

The Higher Regional Court (OLG) Karlsruhe ruled by judgment of 03.03.2026 (Az. 14 UKl 2/24) on the marking requirement in influencer marketing. Even in-kind benefits can require advertising disclosure.

Influencer reports on vehicles following press trips

An influencer in the automotive sector published numerous posts on Instagram about vehicles from various manufacturers without marking them as advertising. The decisive circumstance was that she had been invited by the manufacturers to so-called press events at which travel, accommodation and catering costs were covered and vehicles were made available without there being an express obligation to publish posts.

Allegation: violation of influencer marking requirement despite absence of payment

The subject matter of the proceedings was the allegation that the influencer violated the obligation to mark commercial communications through these posts. The posts presented vehicles in the form of short video clips ("Reels") in which functions, design features or special properties were highlighted. No marking as advertising occurred in any of the cases.

The influencer defended herself in particular by arguing that there was no consideration in the legal sense. She had neither been obliged to publish nor had she received instructions regarding the content or presentation. Furthermore, the posts did not have an advertising character but were editorially designed. Finally, the users in question would in any case have recognised that the content had a commercial background.

Decision of the Higher Regional Court (OLG) Karlsruhe: in-kind benefits sufficient as consideration

The Higher Regional Court (OLG) Karlsruhe did not follow this argument and upheld a violation of the marking requirement. The court first makes clear that even the assumption of travel and accommodation costs as well as the provision of products can constitute relevant consideration. What is decisive is that these benefits are typically granted in the expectation that the products will be reported on. A legal obligation to publish is precisely not required.

In this context, the court explicitly emphasises that constellations in which posts are intended to be prompted precisely through the grant of benefits are also covered. A synallagmatic exchange relationship – that is, a "post for money" – is not required. Equally, there is no de minimis threshold: even benefits of comparatively low value can trigger a marking obligation.

Advertising or editorial content? What matters is the objective effect

Furthermore, the Higher Regional Court (OLG) Karlsruhe establishes that the disputed posts objectively served the promotion of third-party undertakings. The influencer deliberately highlighted properties and special features of the vehicles and thus contributed at least to the image cultivation of the manufacturers. The fact that direct sales were not promoted is irrelevant, since the indirect promotion of the undertaking's image is sufficient.

Recognising influencer advertising: why the posts were not unambiguous

A central point of the decision lies in the question of whether the commercial purpose of the posts was discernible even without marking. The court denies this after detailed analysis of the concrete design of the content. From the perspective of an average user, the videos initially appeared as neutral presentations or operating instructions, not as advertising. The advertising character would at best become apparent upon closer examination, but this is not sufficient. For the consumer must be able to recognise the commercial purpose "at first glance".

Reach and algorithm: the standard is not solely the follower base

The court attaches particular importance to the functioning of social networks. The posts would not only be shown to followers but would also be played out to a broader public through algorithmic recommendations. Therefore, one cannot rely solely on the expectations of the existing follower base. Rather, what matters is how outside users perceive the content, those who have no direct connection to the influencer.

Result: violation of marking requirement under the DDG

Against this background, the Higher Regional Court (OLG) Karlsruhe concludes that the posts were to be classified as commercial communications and, lacking clear marking, violated § 6 Abs. 1 Nr. 1 DDG. The influencer was therefore ordered to cease and desist.

Practical implications: when influencers must mark advertising

The decision demonstrates that the requirements for marking in influencer marketing are broadly construed. What matters is not whether classic payment is made or whether there is a publication obligation. Rather, what is decisive is whether there is a connection between benefits granted and published content and whether this content is recognisable as advertising from the perspective of the average user.

For practice, this means a further tightening of requirements: invitations to events or press trips alone can trigger a marking obligation, even if the content design remains free. Influencers and undertakings are therefore well advised to carefully examine corresponding constellations and, when in doubt, to mark them transparently.

As a firm practising in competition law we advise undertakings and influencers on the legally compliant design of marketing measures and support the implementation of marking obligations in influencer marketing.